Court No. - 51
Case :- APPLICATION U/S 482 No. - 19649 of 2017 Applicant :- Ashok Yadav Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ved Prakash Mishra Counsel for Opposite Party :- G.A.
Hon'ble Vipin Sinha,J.
Heard learned counsel for the applicant, learned counsel for the complainant and learned AGA for the State.
This application has been filed with the prayer to quash the entire criminal proceedings including charge sheet dated 19.09.2019 bearing charge sheet no. 321 of 2009 in criminal case no. 168 of 2010, arising out of case crime no. 438 of 2009, under Section 363, 366 IPC, P.S. Behjoi, District Moradabad.
The contention of the learned counsel for the applicant is to the effect that as far as the opposite party no. 2 is concerned he has already expired. As per office report dated 27.05.2019 which shows that there are no other members in his family. It may also be appreciated that the affidavit filed in the present case is of the victim herself namely Sunita Yadav and this Court has passed an interim order with the following contention:-
"Heard learned counsel for the applicant.
It has been contended by learned counsel for the applicant that even though chargesheet is of the year 2009 and the cognizance was taken in the year 2010, however, the fact remains that in the instant application affidavit has been filed by the victim herself, namely, Smt. Sunita Yadav and the date of birth of the said victim as per Adhar Card is 20.4.1991. It has also been contended that the alleged victim has already entered into marriage with the applicant and they have also one child out of the said wedlock.
Learned A.G.A. has accepted notice on behalf of opposite party no. 1.
Issue notice to opposite party no. 2 returnable at an early date. Steps be taken within a week.
Counter affidavit to be filed within four weeks by the learned A.G.A. as well as opposite party no. 2 and rejoinder affidavit to be filed within three weeks thereafter.
List thereafter.
After hearing learned counsel for the applicant and also in view of the averments made in the affidavit accompanying the application under Section 482 Cr.P.C., prima facie, a case for grant of an interim relief is made out.
Until further orders of this Court, no coercive action shall be taken against the applicant only, in Case No. 168/10 arising out of case crime no. 438/2009 under Sections 363, 366 IPC, police station Behjoi, District Moradabad pending before the concerned courts below."
Today when the case has been taken up, a copy of the counter affidavit has been produced before the Court. The affidavit is that of one Anil Kumar, posted as Sub Inspector at P.S. Bahjoi, District Sambhal.
The attention of the Court has been drawn to the statement of the girl under Section 164 Cr.P.C. copy of which has been annexed at page 34 of the application wherein the girl has categorically stated "meri umar 20 saal hai, mein ashok ko chahti hu, ashok mere pados mein rehta hai, mein ashok se pyar karti hu is liye mein unke sath chali gai, mere pitaji ne galat report likhai hai, mein apni marji se gai thi, mein ghar se nikal kar vichaya gai thi vahi meine askok se mandir mein shaadi ki".
The attention of the Court has also been drawn to the order passed by the C.J.M. Muradabad by means of which C.J.M. Muradabad has set the victim at liberty to go wherever she wants to go by placing reliance upon the statement of the girl under Section 164 Cr.P.C. and on the basis of age as mentioned in the medical certificate i.e., 18 years.
It has been further informed that at present the victim is living with the applicant as husband and wife in her matrimonial home and she has also given birth to one child. Opposite party no. 2 has already expired and there is no other members in the family of the victim.
Keeping in view the fact that the victim is an adult as per the medical certificate and in view of the aforesaid facts and circumstances of the case and also keeping in view the law as laid down by the Division Bench of this Court (Lucknow Bench) rendered in the cases of Vishal Jaiswal And Another v. State of U.P. and Others passed on 26.8.2016 in Misc. Bench No. 10724 of 2016 and Shaheen Parveen And Another vs. State of U.P. and Orthrs passed in writ petition no. 3519 (M/B) of 2015 and by the Apex Court in the cases of Lata Singh vs. State of U.P. and another, reported in 2011 (6) SCC 396 (2014) and Shakti Vahini vs. Union of India passed in writ petition (civil) no. 231 of 2010 and Suhani & Another v. State of U.P. & Ors. passed in Civil Appeal No. 4532 of 2018 decided on 26.04.2018, no purpose would be served in keeping the present case pending before this Court. Accordingly the instant writ petition is allowed impugned charge sheet dated 19.09.2009 bearing charge sheet no. 321 of 2009 in criminal case no. 168 of 2010 arising out of case crime no. 438 of 2009, under Sections 363, 366, IPC P.S. Behjoi, District Moradabad is hereby quashed. Consequences to follow.
Order Date :- 30.9.2019 Ujjawal